Lessons Learned: Case Studies on Challenges and Outcomes with Amendment 821 Retroactivity

Lessons Learned: Case Studies on Challenges and Outcomes with Amendment 821 Retroactivity

Amendment 821 to the federal sentencing guidelines, which went into effect November 1, 2023, provides a chance for thousands of incarcerated folks to get their sentences reduced. This article looks at case studies and strategies for maximizing sentence reductions under the retroactive application of Amendment 821, which the U.S. Sentencing Commission approved on August 24, 2023.

Overview of Amendment 821

Amendment 821 makes big changes to how criminal history is calculated under the guidelines. It limits the impact of older sentences and convictions, so folks aren’t punished forever for mistakes in their past. It also reduces sentences for “zero-point offenders” – defendants who had no criminal history points before their current conviction.

Specifically, Amendment 821:

• Caps the total extra points that can be added for older sentences at 4 points, down from 6.
• Caps the extra points for older felonies at 2, down from 3.
• Caps extra points for older misdemeanors and petty offenses at 1, down from 2.
• Reduces sentences by 2 levels for zero-point offenders, if their crime wasn’t violent or “otherwise serious.”

The examples below show how Amendment 821 creates new chances to revisit old sentences and argue for reductions. But it requires carefully crafting arguments under the retroactive provisions and being willing to litigate resentencing motions and appeals. Consulting experienced criminal defense attorneys is key to maximizing results under Amendment 821 through diligent and thoughtful litigation.

Citing Relevant Laws and Precedents

Here are some of the main laws, sentencing guidelines, and court rulings that provide important context for Amendment 821 retroactivity and resentencing motions:

• 18 U.S.C. § 3582(c)(2) – provides courts authority to reduce sentences if the applicable guidelines range has been lowered by the Sentencing Commission. This allows resentencing under retroactive guideline amendments.
• U.S.S.G. § 1B1.10 – policy statement governing retroactive application of amended guidelines. It lays out the process for courts to follow.
• Dillon v. United States, 560 U.S. 817 (2010) – Supreme Court case holding that the Sentencing Commission’s policy statements on retroactivity are binding on courts.
• U.S. v. Taylor, 20 F.4th 1048 (7th Cir. 2021) – appellate case discussing courts’ broad discretion in applying retroactive amendments and weighing relevant sentencing factors.

Defense lawyers can cite these authorities to argue for the fullest possible sentence reductions under Amendment 821 for eligible inmates.

Case Study 1: Reducing Impact of Older Convictions

John Doe was convicted of drug trafficking in 2015. At sentencing, he received 3 criminal history points for a 2008 drug felony and 2 more points for a 2011 misdemeanor drug offense, resulting in 5 total criminal history points. This led to a criminal history category of III under the guidelines at that time.

Under the retroactive provisions of Amendment 821, the 3 points for his older drug felony would now be capped at 2 points. And the 2 points for his misdemeanor would be capped at 1 point. So his total criminal history points would be reduced from 5 to 3.

This would lower John’s criminal history category from III to II, which could potentially reduce his overall guidelines range. Defense counsel for John can file a motion under 18 U.S.C. § 3582(c)(2) asking the court to resentence him under the retroactive provisions of Amendment 821.

The court has discretion whether to grant the motion and how much to reduce the sentence. But U.S. v. Taylor makes clear courts should consider relevant factors like post-sentencing rehabilitation. So John’s lawyers will want to present evidence of his progress since the original sentencing.

Case Study 2: “Zero-Point Offender” Reduction

Jane Doe was convicted of a low-level drug conspiracy offense in 2018. She had no prior convictions, so her criminal history score was zero. But under the old guidelines, Jane still received a lengthy sentence based largely on inflated drug quantities.

Under Amendment 821, Jane’s lack of any criminal history points would qualify her as a “zero-point offender.” She did not use violence in the offense. And her crime was not otherwise serious. So Jane would be eligible for a 2-level reduction in her offense level under the retroactive provisions.

Jane’s lawyer can file a motion for resentencing, arguing she meets all the criteria for the zero-point offender adjustment. If granted, this could potentially lower Jane’s final guidelines range by several years. Again, the court has discretion in applying the reduction retroactively.

But Jane’s attorney will want to explain how she meets the criteria and emphasize factors like her minimal role in the offense and efforts at rehabilitation since her original sentencing.

The Road Ahead

While actual numbers remain to be seen, Amendment 821 retroactivity stands to benefit thousands of inmates and reduce overpopulated federal prisons. But it will require defense lawyers, advocates and judges willing to do the work of filing motions, litigating appeals, and poring over individual case details to achieve meaningful results.

For inmates serving lengthy sentences, Amendment 821 provides a glimmer of hope. But its promise can only be fulfilled through diligent retroactive application on a case-by-case basis. This will involve overcoming resistance from some prosecutors and judges. It will require tenacity from advocates to see the process through.

There is hope that Amendment 821 signals a broader shift toward reform. Congress recently passed the FIRST STEP Act with bipartisan support. While there’s still resistance, the tide seems to be turning.

But lasting change requires public pressure. Call your representatives and ask them to support reforms like retroactivity. Get involved with groups like FAMM advocating for change. And vote for candidates committed to creating a fairer system.

The road ahead is long. But Amendment 821 retroactivity provides a chance to take an important step.